A conviction of a second DUI when the prior DUI conviction or “wet reckless” offense was within the past 10 years increases the penalties under California vehicle code section 23540. This means longer jail time and more expensive fines, in addition to a longer DUI program and SR-22 filing requirement.
Attorney Aizman is a Former DUI prosecutor that trained police officers on how to testify in DUI hearing & trials.
Certain mandatory penalties exist for a 2nd time DUI. Those include:
- Possible jail time is increased to a minimum of 96 hours in the county jail but no more than one year.
- The fine is between $390 and $1,000 and will likely be higher than the fine from the first offense. The court will also add penalty assessments to the fine which will typically multiply the total amount by five. So a $390 fine with penalty assessments is around $1950.
- Jail time or community labor can be completed in lieu of the fine.
A second offense within 10 years of your prior offense brings your license suspension or revocation to at least one year1. You may be able to get a restricted license after three months but until then, you are not permitted to have any driving privileges.
The court will also require that you attend a mandatory DUI program that can range from 18 to 30 months. Only upon proof of completion of the course will you be permitted to receive your driving privileges back. As you can see, the penalties for a second DUI offense within a 10-year period can severely impact your daily life and the lives of those around you.2
Other than the driving under the influence program that you will have to complete, the judge may also impose collateral sentences that may require you to attend AA programs, Mothers Against Drunk Driving (MADD) programs, or other programs that impart the seriousness of a DUI.
In most counties it is still discretionary for the judge to require you to install an Ignition Interlock Device after the first DUI charge. However, after a second DUI or wet reckless offense within 10 years, the judge may require that you to have an Ignition Interlock Device on any car that you may drive after the period of suspension of your license has ended as a condition of your probation.3
Depending on the circumstances of your case we can employ a number of potential defenses in a second time DUI to potentially reduce charges or get a case dismissed:
Probable Cause In A DUI Stop- In order to arrest someone for a DUI an officer has to have a resonable belief that a crime is being committed. If the officer cannot establish to the court, probable cause for the arrest than we may be able to suppress any evidence through a suppresion hearing.
Misconduct at a sobriety checkpoint – If the officer administering the field sobriety tests at a dui checkpoint did not follow the correct procedures the evidence can be challenged. For example many officers do not take into account medical conditions, structure of pavement etc when administering the field sobriety tests.
1) What Is A “Wet Reckless” Offense?
A “wet reckless” is another name for California Vehicle Code section 23103 charge of reckless driving involving alcohol. If you have a good defense or the prosecution believes there is some weakness to the DUI charge, such as an exact 0.08% chemical test, the prosecution may offer a plea bargain for a wet reckless. However, note that a wet reckless is still a prior offense on your record and if you are convicted of another DUI within 10 years of the wet reckless, the DUI will be considered your second DUI and the penalties will be applied accordingly.4
2) What Are Considered “Aggravating Factors” In My DUI Case?
An aggravating factor is an additional charge that can affect the penalties of your DUI and the following is a non-exhaustive list.
- Driving on a suspended license (Vehicle Code 14601)
- Auto accident
- Hit and run (Vehicle Code 20001)
- Minor or child in the car (Vehicle Code 23572 VC)
- Chemical test refusal
- Speeding Enhancmeent (Vehicle Code 23582)
- Alcohol content of .15 or higher
3) What Happens If I Was Still On Probation From My First DUI At The Time Of My Arrest For My Second DUI?
It is likely that your probation will be revoked and the penalties associated with your second DUI will be much harsher than if you were no longer on probation. Furthermore, the DMV will suspend your license for a period of 1 year before you are eligible for a restricted license. The suspension will be a total length of 2 years.
4) How Does My Refusal Of A Chemical Test For Both DUI Arrests Affect The Penalties?
In California, if you are suspected of driving under the influence, you are deemed to consent to a chemical breath test. If you refuse one or both times when arrested, the punishments will be much harsher. Additionally, if you refuse a breathalyzer test you will not qualify for the limited privilege of a restricted license.
5) Is It Likely That The Judge Will Allow A Community Service Or Work Sentence To Replace The Mandatory Jail Time?
The Judge does not have the discretion to delete the jail time in a 2nd offense DUI. It is set by the legislature by statute. The Judge can, however, allow you to complete your jail sentence in a private (City) jail or may allow you to complete your sentence in a lockdown residential rehabilitation/treatment facility for substance abuse.
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- California Vehicle Code 23540(a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550. (b) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5 [↩]
- California Vehicle Code Section 23542 (b) In addition to the conditions specified in subdivision (a), the court shall require the person to do either of the following: (1) Enroll and participate, for at least 18 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation. The program shall provide for persons who cannot afford the program fee pursuant to paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety Code in order to enable those persons to participate.(2) Enroll and participate, for at least 30 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation [↩]
- California Vehicle Code Section 23575(f)(1) If a person is convicted of a violation of Section 23152 or 23153 and the offense occurred within 10 years of one or more separate violations of Section 23152 or 23153 that resulted in a conviction, or if a person is convicted of a violation of Section 23103, as specified in Section 23103.5, and is suspended for one year under Section 13353.3, the person may apply to the Department of Motor Vehicles for a restricted driver’s license pursuant to Section 13352 or 13353.3 that prohibits the person from operating a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device, certified pursuant to Section 13386. The restriction shall remain in effect for at least the remaining period of the original suspension or revocation and until all reinstatement requirements in Section 13352 or 13353.4 are met. [↩]
- Vehicle Code Sections 23103, 23013.5 [↩]